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

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

Introduction

Jackson v Attorney General or Jackson and Others v Attorney General 2005 UKHL 56, 2006 1 AC 262 was a 2005 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 and unusually was heard by a panel of nine judges rather than the usual five (www.bailii.org).

Background

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.

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 (www.blurbwire.com).

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 (www.justice.org.uk).

Discussion

The central issue of law raised by this appeal is a question of interpretation of section 2 of the Parliament Act 1911. The issue can be identified quite shortly, although the parties' submissions ranged widely. The 1911 Act, section 2, prescribed circumstances where in future a Bill could become law without the consent of the House of Lords. In future, with stated exceptions, the approval of the House of Lords to a public Bill could be dispensed with if the Bill was passed by the Commons but rejected by the Lords in three successive sessions, two years having elapsed between the date of the second reading in the Commons in the first of those sessions and the date when the Bill passed the Commons in the third. In other words, the Lords could hold up legislation for three sessions spread over a minimum period of two years from the effective introduction of a Bill. The 1911 Act was enacted with the consent of both Houses (www.bailii.org).

Discussions regarding the fundamental nature of Parliamentary Sovereignty in our Constitution have been predominantly concerned with Legislative-Judicial tension.1 Debate concerning executive dominance, whilst not mute, ...