JACKSON v ATTORNEY GENERAL

General principle:

The House of Lords held that any future legislation passed in breach of section 2(1) of the Parliament Act 1911 (as amended in 1949) would not be considered by courts as a valid Act of Parliament, which would result on restricting Parliament’s powers to adopt any legislation.

R (Jackson) v Attorney General [2005] UKHL 56

Facts:

This case concerned the Hunting Act 2004, which was passed under the Parliament Act 1911 (as amended in 1949) allowing legislation to be adopted without the consent of the House of Lords. However, Section 2(1) of the Parliament Act (1911) expressly excludes the possibility to use these accelerated procedures for legislation extending “the life of Parliament”. This Act makes hunting of wild animals, and especially foxes, by dogs unlawful. At issue in R (on application of Jackson) v Attorney-General [2005] UKHL 56 was the validity of the Hunting Act itself. The Act was passed without the consent of the House of Lords, using the procedure created by the Parliament Acts of 1911 and 1949.

Ratio:

The majority of the House of Lords stated in this case that they would not recognise as a valid Act of Parliament, a legislation that would extend the maximum duration of Parliament beyond five years, therefore not complying with section 2(1) of the Parliament Act 1911 (as amended in 1949). In other words, any future legislation extending the life of Parliament, adopted by a Parliament only composed of the Monarch and the House of Commons, would be invalid as infringing section 2(1).

Application:

The decision in Jackson challenges the Dicyean views on Parliamentary supremacy. It should be noted that the comments made in this case were obiter, therefore the precedential value of this case has to be mitigated. Turpin wrote:

“The comments made in Jackson were obiter and, moreover, they were uttered in the context of litigation concerning statutes passed without the consent of the House of Lords. It may be, for that reason, that they prove to be of little precedential value”.

Analysis:

Under the traditional view of parliamentary sovereignty, there are no substantive limitations on the legislation enacted by the Parliament (Introduction to the Study of the Constitution, Dicey 1885). Hence, the Parliament could theoretically pass the proposed provision under its current version. However, parliamentary sovereignty constitutes only one of the two fundamental principles upon which the constitution rests the other being rule of law. In reconciling the tension between the two principles, the judiciary has recognised that parliamentary sovereignty is not absolute (per Lord Hope and Lord Steyn in R (Jackson) v Attorney General) and has even gone on to reason that the rule of law is the “ultimate controlling factor” on which the UK constitution is based (per Lord Hope in R (Jackson) v Attorney General). In this context, the rule of law operates as a check on the executive power by requiring that the executive acts only pursuant to lawful authority, which is ultimately granted by Parliament.