R (Jackson) v Attorney General [2005]  - Casebank (2024)

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Headnote

This case was seen by the House of Lords. It concerned the correct interpretation of the Parliament Act 1911, and the validity of the Parliament Act 1949 and the Hunting Act 2004.

I. Facts of the Case

Before the passage of the Parliament Act 1911, any new Parliament Act required the consent of both the House of Commons and the House of Lords. As the House of Lords members predominantly held Conservative views, it was difficult for the Liberal governments to carry out their legislative programme, as the House of Lords can veto or heavily amend bills that had obtained majority support in the House of Commons. To restrict the power of the House of Lords to veto legislation, the Liberal government of 1911 pressured the then House of Lords into passing the Parliament Bill which subsequently became the Parliament Act 1911. According to the 1911 Act, the House of Lords could only delay Public Bills for two years, after which the Bills automatically became law, except for Money Bills or Bills extending the duration of Parliament. The Parliament Act 1949, which was passed in compliance with the 1911 Act because of the House of Lords’ opposition, shortened the two-year delay period to one year.

In 2004, the Hunting Act 2004 was passed and banned hunting foxes with hounds in England and Wales. It was passed following the procedures of the 1911 Act as amended by the 1949 Act because of the House of Lords’ opposition. Three claimants challenged the validity of the 2004 Act in the courts: John Bernard Jackson, the chairman of Countryside Alliance which supported hunting with dogs; Patrick Douglas Martin, a professional huntsman; and Harriet Mair Hughes who worked in a family farriery business. They claimed that the 1949 Act was invalid because the 1911 Act did not authorise the House of Commons to shorten the two-year delay period without the consent of the House of Lords, and that consequently, the Hunting Act 2004 was invalid because it was passed following the 1949 Act procedure. The Divisional Court rejected the claim, ruling that the plain language of the 1911 Act permitted such a modification of itself. The Court of Appeal dismissed the claimants’ appeal on a different ground: they accepted that the 1911 Act could not be used to introduce fundamental constitutional changes, but they thought that the modification introduced by the 1949 Act was “modest”. The claimants then appealed with the permission of the House of Lords.

II. Issues of the Case

The issue of the case is whether the 1949 Act validly amended the 1911 Act, and therefore whether the Hunting Act 2004 was a valid statute having been enacted following the Parliament Acts 1911 and 1949. The validity of the 1949 Act depended on whether the 1911 Act allowed the passage of bills to amend itself without the consent of the House of Lords.

III. Rationes Decidendi

The House of Lords unanimously dismissed the claimants’ appeal, finding that the 1949 Act was validly created. Thus, the Hunting Act 2004, having followed the 1949 Act procedure, was a valid statute. Their rationes decidendi are as follows:

1. The legislative purpose of the Parliament Act 1911 was not to enlarge the powers of the House of Commons but to restrict the powers of the House of Lords to veto legislation passed by the House of Commons.
2. The legislative purpose of the Parliament Act 1911 was not to delegate powers to the House of Commons from the House of Lords.
3. The 1911 Act section 2(1) created a parallel route to create primary rather than subordinate legislation.
4. Since exceptions to the rule in section 2(1) has been expressly stated, there was no merit in implying further exceptions.
5. There is no constitutional principle that prohibits the legislature from altering its own constitution by altering the very legislative instrument from which its powers derive.
6. Therefore, the Parliament Act 1949 validly altered the 1911 Act, and hence the Hunting Act 2004, having been passed under the Parliament Acts 1911 and 1949, is valid.

IV. The Significance of the Case

One significance of the case is that several judges expressed their doubts as to whether the Parliament Act 1911 and 1949 could be used to enact even the most fundamental constitutional changes, including ones that contravene the fundamental constitutional principle of the rule of law. Lord Steyn, for example, stated at [112] that he might be prepared to challenge such legislation that undermines the rule of law even if it meant Parliamentary sovereignty might be compromised. This shows the vital role of the judiciary in protecting fundamental constitutional arrangements.

The second significance of the case is that through confirming the validity of Parliament Act 1949, the court secured the House of Commons’ existing power to pass legislation without undue delay from the House of Lords. As the House of Commons is democratically elected, this protects the democracy in the UK.

Appellate History

• The House of Lords [2005] –Decision Approved
• Court of Appeal [2005] –Decision Approved
• Divisional Court [2005] –Decision Approved

Topics

• Parliamentary Sovereignty
• Rule of Law

Submission Details

Reviewed By Ross Birkbeck
Submitted By Haocheng Fang
First Published 26th July 2022

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See

UK Legislation:

• Bill of Rights 1689
• Acts of Union of 1707
• Septennial Act 1715
• Great Reform Act
• Colonial Laws Validity Act 1865
• South Africa Act
• Finance (1909-10) Act 1910
• Parliament Act 1911
• Government of Ireland Act 1914
• Welsh Church Act 1914
• Abdication Act 1936
• Parliament Act 1949
• European Communities Act 1972
• War Crimes Act 1991
• Criminal Justice and Public Order Act 1994
• Criminal Procedure and Investigations Act 1996
• Human Rights Act 1998
• European Parliamentary Elections Act 1999
• House of Lords Act 1999
• Sexual Offences (Amendment) Act 2000
• European Parliamentary Elections Act 2002
• Sexual Offences Act 2003
• Hunting Act 2004

UK and Privy Council Caselaw:

• Stradling v Morgan (1560) 1 Plow 199
• The Prince’s Case (1606) 8 Co Rep 1a
• R v Countess of Arundel (1617) Hobart 109
• Edinburgh and Dalkeith Railway Cov Wauchope (1842) 8 Cl & F 710
• R v Burah (1878) 3 App Cas 889
• Hodge v The Queen (1883) 9 App Cas 117
• Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282
• McCawley v The King [1920] AC 691
• Viscountess Rhondda’s Claim [1922] 2 AC 339
• Inland Revenue Comrs v Dowdall O’Mahoney & Co Ltd [1952] AC 401
• MacCormick v Lord Advocate 1953 SC 396
• Bribery Commissioner v Ranasinghe [1965] AC 172
• Madzimbamuto v Lardner-Burke [1969] 1 AC 645
• West Midland Baptist (Trust) Association Inc v Birmingham Corporation [1970] AC 874
• Pickin v British Railways Board [1974] AC 765
• Gibson v Lord Advocate, 1975 SC 136
• Pringle, Petitioner 1991 SLT 330,
• R v Secretary of State for Transport
• Ex p Factortame Ltd (No 2) [1991] 1 AC 603
• Pepper v Hart [1993] AC 593
• R v Secretary of State for the Home Department
• Ex p Pierson [1998] AC 539
• R v Secretary of State for the Home Department
• Ex p Simms [2000] 2 AC 115
• R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349
• R (Edison First Power Limited) v Central Valuation Officer [2003] UKHL 20
• R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563
• Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816
• R (Jackson) v Attorney General [2005] QB 579
• R v Z (Attorney General for Northern Ireland’s Reference) [2005] UKHL 35

International Legislation:

• Parliamentary Bills Referendum Act of 1908 (Australia)

International Caselaw:

• Taylor v Attorney General of Queensland (1917) 23 CLR 457
• Attorney General for New South Wales v Trethowan (1931) 44 CLR 394
• Harris v Minister of the Interior 1952 (2) SA 428
• Minister of the Interior v Harris 1952 (4) SA 769
• Collins v Minister of the Interior 1957 (1) 552 (AD)
• Clayton v Heffron (1960) 105 CLR 214.

International Treaties:

• European Convention on Human Rights
• First Protocol to the European Convention on Human Rights