Jackson v Attorney General

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Jackson v Attorney General
Court House of Lords
Full case name R. (on the application of Jackson and others) v Attorney General
Date decided 2005
Citation(s) [2005] UKHL 56, [2006] 1 AC 262
Transcript(s) A law report of the case
Judge(s) sitting Lord Bingham of Cornhill; Lord Nicholls of Birkenhead; Lord Steyn; Lord Hope of Craighead; Lord Rodger of Earlsferry; Lord Walker of Gestingthorpe; Baroness Hale of Richmond; Lord Carswell; Lord Brown of Eaton-under-Heywood
Case history
Prior action(s) Divisional Court ([2005] EWHC 94 (Admin)), Court of Appeal ([2005] EWCA Civ 126)
Keywords
Acts of Parliament; Hunting; Parliamentary sovereignty; Subordinate legislation

Jackson v Attorney General [2005] UKHL 56 was a House of Lords case concerning the legality of the use of the Parliament Acts 1911 and 1949 to pass the Hunting Act to ban fox hunting. It is considered a case of major constitutional significance[1] and unusually was heard by a panel of nine judges rather than the usual five.[2]

Contents

[edit] Background

The Jackson case challenged the Hunting Act 2004 which made it illegal to hunt wild animals with dogs except in limited circumstances, an Act which had received royal assent in November 2004.[3] The Act was particularly directed against fox hunting but also covered other forms of hunting including hare coursing. The pledge to ban fox hunting was made as part of Labour’s 2001 General Election manifesto but faced opposition from the Countryside Alliance. It was passed under section 2 of the Parliament Act 1911, as amended by section 1 of the Parliament Act 1949, meaning that it was passed without the consent of the Lords after a proscribed delay.[3] The use of the Parliament Act was contested by the claimants.[3]

[edit] Lower courts

It was heard by the Divisional Court and decided on 28 January 2005. Lord Justice Maurice Kay and Mr Justice Collins presided.[case 1] It was referred to the Court of Appeal with a ruling on 16 February 2005; Lord Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ presided.[case 2]

It was the Court of Appeal's decision that constitutional changes could not be passed under the 1911 Act, saying "We appreciate that it is most unlikely that the Commons would ever contemplate seeking to use the 1911 Act... to enact legislation to which the House of Lords had not consented, in order to extend the duration of Parliament or... to abolish the House of Lords. [If] it did contemplate such action we would regard this as being contrary to the intention of Parliament when enacting the 1911 Act." In doing so, it overruled the Divisional Court.[4] However, it excepted the 1949 Act on the grounds that it was "relatively modest and straightforward amendment" that did not "extend to making changes of a fundamentally different nature to the relationship between the House of Lords and the Commons".[5]

[edit] Arguments made

[edit] Appellants

The appellant's argument was summarised by Lord Bingham:[6]

  1. Legislation made under the 1911 Act is delegated or subordinate, not primary.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Jackson challenged the validity of the Hunting Act, arguing that the 1949 Act was invalid because it had been passed using the 1911 Act, something he claimed the 1911 Act was never intended to allow. If his claim was valid, all Acts passed under the 1949 Act (including the Hunting Act) would become invalid.[7]

Jackson's argument hinged on the interpretation of Section 2(1) of the 1911 Act, which said that the Act may not be used to pass an Act to "extend the maximum duration of Parliament beyond five years". He argued that this included additional, unwritten restrictions. Firstly, because legislation passed under the 1911 Act had not been passed by all of Parliament (the House of Commons, House of Lords and Queen-in-Parliament), only a limited set of chambers (the House of Commons and Queen-in-Parliament), it was delegated legislation. Secondly, it was argued that Section 2(1) contained an unwritten provision based on the principle that a delegated body cannot extend its own powers unless expressly granted the power to do so. Since the 1949 Act enlarged the powers of the "delegated body", it was invalid.[8]

[edit] Respondent

Lord Goldsmith QC, A-G, Philip Sales and Clive Lewis, on behalf of the Attorney General, suggested that the purpose of the Act was not to institute a system where powers were devolved from the Lords to the Commons, but instead to limit the power of the Lords. They also claimed that "any Public Bill", a clause in the 1911 Act, was clearly wide; this was reinforced by certain particular exceptions following it in parentheses. The 1911 Act established an alternative route for legislation, not a devolved one. This would make legislation passed under it primary legislation. There was "no real doubt that the 1949 Act has been accepted as valid legislation" they argued. It was also their belief that "there is no reason why the express words of section 2 should be limited or why the legislation thus made should not ... have effect as primary legislation".[9]

Opposing counsel argued that Section 2(1) was limited in how it could be interpreted and did not imply the creation of a dedicated body, drawing on legislation from the Dominion to support their argument.[8]

[edit] Ruling

[edit] Standing

Issue was not made of whether the Countryside Alliance should have standing to fight such a case. It has been suggested that this is because it was seen as inevitable that the hunting ban would be challenged in the court.[1]

[edit] Justiciability

The case also raised the issue of whether the courts could challenge an Act of Parliament. The Enrolled Bill doctrine had established that the courts could not look procedurally at the way in which legislation had been passed.

Lord Bingham said "I feel some sense of strangeness at the exercise which the courts have... been invited to undertake in these proceedings"[10] and identified Pickin v British Railways Board as having "very clearly decided that 'the courts in this country have no power to declare enacted law to be invalid'", quoting Lord Simon in that case,[case 3] and that this decision was "unquestioned".[10] However, he notes that the bill was not enacted by both houses as 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."[10]

Lord Nicholls reasons differently: "[this] challenge to the lawfulness of the 1949 Act is founded on a different and prior ground: the proper interpretation of section 2(1) of the 1911 Act. On this issue the court's jurisdiction cannot be doubted. [...] The proper interpretation of a statute is a matter for the courts, not Parliament."[11] Lord Hope continued: "there was no absolute rule that the courts could not consider the validity of a statute and that the issue as to the validity of the Hunting Act 2004 was one of statutory interpretation ... [answering] this question involves no breach of constitutional propriety".[12] All nine judges accepted that the court had jurisdiction of consider whether the 1949 was valid.[13]

[edit] Status of legislation

It was submitted by the appellant that legislation passed using the 1911 Act is delegated.[14] Lord Bingham was in agreement with the Divisional Court that this was not true, in contrast to the decision of the Court of Appeal.[15] he argued that the phrasing "become an Act of Parliament on the Royal Assent being signified" denoted primary legislation. He went on to say that the "change [made by the 1911 Act] lay not in authorising a new form of sub-primary parliamentary legislation but in creating a new way of enacting primary legislation."[16] Lord Nicholls was in agreement, saying that to call legislation passed under the 1911 Act 'delegated' "would be an absurd and confusing mischaracterisation... the House of Commons [is not] a "delegate" or "agent" when applying the 1911 Act procedure."[17] Lord Steyn agreed, saying "it has none of the attributes or trappings of delegated legislation", although accepting that finding to the contrary would support the appellants argument.[18] Lord Hope stated that "it is primary legislation, albeit enacted in a way that is different",[19] and Lord Brown also concurred with this viewpoint.[20] The five Lords can be considered in agreement.[21]

[edit] Constitutional changes under the 1911 Act

Seven of the nine Lords agreed that an 'Act' extending the life of a parliament beyond five years would be considered invalid, with a bare majority considering any 'Act' that would allow the amendment of s. 2(1) of the 1911 Act to allow the extension of a parliament similarly invalid.[13] The argument that changes were "modest and straightforward" and excepted from a general rule was not advanced in the Lords.[22] Lord Bingham proposed that even "changes of major constitutional significance" could be realised under the Act, excluding parliament length directly.[22] However, it was his view that the 1911 Act could be amended removing this exemption, since there was nothing to say that the 1911 could not be amended using itself, and "even if there were such a provision it could not bind a successor Parliament".[23]

It was the majority view that the government could not "do indirectly by two stages what the House cannot do directly in one stage" (in the words of Lord Nicholls) by amending the 1911 to remove restrictive clauses.[22][24] This was a confirmation that the Parliament Act procedure could not be used for any bill.[24]

[edit] Outcome

The plaintiff's arguments were rejected by the House of Lords and the Hunting Act was found to be valid.

[edit] Wider relevance

The case is of importance in the area of British constitutional law because of several judgements which consider the relationship between parliamentary supremacy and the rule of law within the British constitution.

In the obiter of the judgment several Law Lords challenged the traditional Diceyan notion of legislative supremacy. Baroness Hale stated that:

'Parliament has also, for the time being at least, limited its own powers by the European Communities Act 1972 and, in a different way, by the Human Rights Act 1998’.[1]

Several other Law Lords suggested that the Act of Union also meant that Parliament was limited in its ability to legislate.

[edit] References

[edit] Cases cited

  1. ^ [2005] EWHC 94 (Admin)
  2. ^ [2005] EWCA Civ 126
  3. ^ [1974] AC 765, p. 798.

[edit] Citations

  1. ^ a b c "Blackwell Synergy". http://www.blackwell-synergy.com/doi/pdf/10.1111/j.1748-121X.2006.00038.x. 
  2. ^ Loveland (2006). p. 216.
  3. ^ a b c Regina (Jackson and others) v Attorney General [2006] 1 AC 272. p. 262.
  4. ^ [2005] EWCA Civ 126 at 41.
  5. ^ [2005] EWCA Civ 126 at 98–100.
  6. ^ Lord Bingham. Section 7.
  7. ^ Young (2006) p.2
  8. ^ a b Young (2006) p.3
  9. ^ "Lord Goldsmith QC, A-G, Philip Sales and Clive Lewis for the Attorney General"
  10. ^ a b c Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 27.
  11. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 51.
  12. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 110.
  13. ^ a b Le Sueur et al. (2010). p. 592.
  14. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 22.
  15. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 23 and 24.
  16. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 24.
  17. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 64.
  18. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 94.
  19. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 111.
  20. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 187.
  21. ^ Le Sueur et al. (2010). p. 594.
  22. ^ a b c Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 31.
  23. ^ Regina (Jackson and others) v Attorney General [2006] 1 AC 272 at 32.
  24. ^ a b Le Sueur et al. (2010). p. 598.

[edit] Bibliography

  • Le Sueur, Andrew; Sunkin, Maurice; Murkens, Jo (2010). Public Law: Texts, Cases and Materials. Oxford: Oxford University Press. ISBN 9780199284191. 
  • Loveland, Ian (2006). Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (4 ed.). 
  • Young, Alison (2006). "Hunting sovereignty: Jackson v Her Majesty's Attorney-General". Public Law. ISSN 0033-3565. 

[edit] External links

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