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R (Jackson) v Attorney General

R (Jackson) v Attorney General
CourtHouse of Lords
Full case nameRegina (on the application of Jackson and others) v Attorney General
Decided13 October 2005
Citation(s)
Transcript(s)House of Lords transcript
Case history
Prior action(s)Divisional court ([2005] EWHC 94 (Admin))
Appealed fromCourt of Appeal ([2005] EWCA Civ 126, [2005] QB 579)
Court membership
Judges sitting
Case opinions
The Parliament Act 1911 could be used to pass the Parliament Act 1949; the Hunting Act was therefore validly enacted using the Parliament Acts procedure.[1]: 1–2 
Keywords

R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case noted for containing obiter comments by the judiciary acting in their official capacity[note 1] suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom.[3]: 13 

The case, brought by Jackson and two other members of the Countryside Alliance, challenged the use of the Parliament Acts 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.[4]

A divisional court[5] and Court of Appeal[6] both rejected this claim, although the Court of Appeal held that Parliament Acts procedure could not be used to effect "fundamental constitutional changes".[3]: 2 [6]: [41]  The case was appealed again to the House of Lords.[7] 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);[8]: 567  standing was not challenged.[3]: 4  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).[3]: 13–15 

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.[9]: 194–195  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).[10]: 139–141  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.[8]: 572, 578–579  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.[11]: 102–103 

  1. ^ Elliott, Mark (2006). "The sovereignty of Parliament, the hunting ban and the Parliament Acts". Cambridge Law Journal. 65 (1): 1–4. doi:10.1017/s0008197306217033. S2CID 143986039.
  2. ^ Carlo Panara; Michael R. Varney (4 December 2013). Local Government in Europe: The 'Fourth Level' in the EU Multi-Layered System of Governance. Routledge. p. 378. ISBN 978-1-135-02126-9. Retrieved 16 November 2020.
  3. ^ a b c d Mullen, Tom (2007). "Reflections on Jackson v Attorney General: questioning sovereignty". Legal Studies. 27 (1): 1–25. doi:10.1111/j.1748-121X.2006.00038.x. S2CID 144785570.
  4. ^ "Jackson and others (Appellants) v Her Majesty's Attorney-General- Judgment" (PDF). 13 October 2005. Retrieved 16 November 2020.
  5. ^ R (Jackson) v Attorney General, 2005 EWHC 94 (EWHC 2005).
  6. ^ a b R (Jackson) v Attorney General, 2005 EWCA Civ 126 (EWCA Civ 2005).
  7. ^ R (Jackson) v Attorney General, 2006 1 AC 262 (UKHL 2006).
  8. ^ a b Jowell, Jeffrey (2006). "Parliamentary sovereignty under the new constitutional hypothesis". Public Law. 2006 (3): 562–580.
  9. ^ Young, Alison L. (2006). "Hunting sovereignty: Jackson v Her Majesty's Attorney-General". Public Law. 2006 (2): 187–196. ISSN 0033-3565.
  10. ^ Forsyth, Christopher (2011). "The definition of parliament after Jackson: can the life of parliament be extended under the Parliament Acts 1911 and 1949?". International Journal of Constitutional Law. 9 (1): 132–143. doi:10.1093/icon/mor019.
  11. ^ Ekins, Richard (2007). "Acts of Parliament and the Parliament Acts". Law Quarterly Review. 123 (1): 91–115.


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