Jackson v Attorney General

Facts

The Hunting Act 2004 banned the hunting of wild mammals with dogs. The House of Lords did not consent to it, and it was presented for Royal Assent under the procedure in the Parliament Act 1911, as amended by the Parliament Act 1949. The 1949 Act had itself been passed under the 1911 procedure, and shortened the delay required from three sessions to two.

History

The claimants, who opposed the ban, sought a declaration that the Hunting Act was not an Act of Parliament. The Administrative Court and the Court of Appeal rejected the claim, and they appealed to the House of Lords.

Issue

Whether the Parliament Act 1949 was a valid Act of Parliament, given that it was passed under the 1911 Act without the consent of the House of Lords and amended the 1911 Act itself; and whether the Hunting Act was therefore a valid Act of Parliament.

Held

Appeal dismissed. The 1949 Act was valid, and so the Hunting Act 2004 was a valid Act of Parliament.

Ratio

• The Parliament Act 1911 did not confer a limited delegated power which could not be used to enlarge itself; it created a different way of making primary legislation, so an Act passed under it, including the 1949 Act which reduced the delay, is a valid Act of Parliament. The Lords gave differing reasons and did not agree on every limit on the 1911 procedure, so there is no single reasoned ratio beyond that conclusion.

The judgments

Key reasoning

• The 1911 Act is expressly framed so that a bill passed by the Commons in successive sessions, and which the Lords have not passed, becomes an Act of Parliament on Royal Assent, with a stated exception for bills to extend the life of Parliament.
• The argument that a delegate cannot enlarge its own powers presupposes that the 1911 Act delegated power to the Commons and the Crown, but its terms and history show it created a procedure for making primary legislation.
• The 1949 Act was therefore made by a valid exercise of the procedure, and the Hunting Act, made under it, was valid.
• The courts examine the validity of enactments only for compliance with the statutory conditions, and parliamentary sovereignty is no objection once the 1911 procedure was followed.

Obiter

• Lords Steyn and Hope and Baroness Hale indicated that the sovereignty of Parliament is a creation of the common law and that the courts might decline to apply legislation which attempted to abolish judicial review or the rule of law.

Where it fits in the module

The topic on whether Parliament can bind its successors concerns the continuing and self-embracing views of sovereignty and the manner and form theory, under which Parliament can redefine itself for the purpose of making law. Jackson is the most important modern case, because the 1911 and 1949 Acts altered the manner in which legislation can be made. The obiter statements raise the question whether sovereignty is a rule of the common law subject to the rule of law.

Criticisms

• The reasoning treats the 1911 Act as creating a new route for primary legislation, but this fits poorly with the idea that Parliament remains the same body, and gives no clear account of what the limits of the new route are.
• The Lords disagreed on the reasoning and on whether the 1911 procedure could be used for constitutional changes, so the decision leaves the extent of the Parliament Acts uncertain.
• The obiter claims that sovereignty is a creation of the common law could allow judges to override statute, which departs from the orthodox view that sovereignty is the source of judicial authority, and the dicta lack agreement among the Lords.
• The decision accepts the use of the 1911 procedure to amend the 1911 Act itself, which opens the way to later enlargement of the powers of the Commons without the consent of the Lords.