Jackson v Attorney General
Encyclopedia
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 and unusually was heard by a panel of nine judges rather than the usual five.
wild animals with dogs
except in limited circumstances, an Act which had received royal assent
in November 2004. 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. The use of the Parliament Act was contested by the claimants.
and decided on 28 January 2005. Lord Justice Maurice Kay and Mr Justice Collins presided. 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.
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. 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".
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.
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.
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" 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,[1974] AC 765, p. 798. and that this decision was "unquestioned". 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."
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." 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". All nine judges accepted that the court had jurisdiction of consider whether the 1949 was valid.
. Lord Bingham was in agreement with the Divisional Court that this was not true, in contrast to the decision of the Court of Appeal. 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." 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." 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. Lord Hope stated that "it is primary legislation, albeit enacted in a way that is different", and Lord Brown also concurred with this viewpoint. The five Lords can be considered in agreement.
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. This was a confirmation that the Parliament Act procedure could not be used for any bill.
and the Hunting Act was found to be valid.
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:
Several other Law Lords suggested that the Act of Union also meant that Parliament was limited in its ability to legislate.
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
case concerning the legality of the use of the Parliament Acts 1911 and 1949
Parliament Acts 1911 and 1949
The Parliament Acts 1911 and 1949 are two Acts of the Parliament of the United Kingdom, which form part of the constitution of the United Kingdom. Section 2 of the Parliament Act 1949 provides that that Act and the Parliament Act 1911 are to be construed as one.The Parliament Act 1911 The...
to pass the Hunting Act
Hunting Act 2004
The Hunting Act 2004 is an Act of the Parliament of the United Kingdom. The effect of the Act is to outlaw hunting with dogs in England and Wales from 18 February 2005...
to ban fox hunting
Fox hunting
Fox hunting is an activity involving the tracking, chase, and sometimes killing of a fox, traditionally a red fox, by trained foxhounds or other scent hounds, and a group of followers led by a master of foxhounds, who follow the hounds on foot or on horseback.Fox hunting originated in its current...
. It is considered a case of major constitutional significance and unusually was heard by a panel of nine judges rather than the usual five.
Background
The Jackson case challenged the Hunting Act 2004 which made it illegal to huntHunting
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...
wild animals with dogs
Scent hound
Scent hounds are a type of hound that primarily hunts by scent rather than sight. The Scenthound breeds are generally regarded as having some of the most sensitive noses among canines....
except in limited circumstances, an Act which had received royal assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
in November 2004. The Act was particularly directed against fox hunting
Fox hunting
Fox hunting is an activity involving the tracking, chase, and sometimes killing of a fox, traditionally a red fox, by trained foxhounds or other scent hounds, and a group of followers led by a master of foxhounds, who follow the hounds on foot or on horseback.Fox hunting originated in its current...
but also covered other forms of hunting including hare coursing
Hare coursing
Hare coursing is the pursuit of hares with greyhounds and other sighthounds, which chase the hare by sight and not by scent. It is a competitive sport, in which dogs are tested on their ability to run, overtake and turn a hare, rather than a form of hunting aiming at the capture of game. It has a...
. The pledge to ban fox hunting was made as part of Labour’s
Labour Party (UK)
The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...
2001 General Election manifesto but faced opposition from the Countryside Alliance
Countryside Alliance
The Countryside Alliance is a British organisation promoting issues relating to the countryside such as country sports, including hunting, shooting and angling...
. It was passed under section 2 of the Parliament Act 1911
Parliament Act 1911
The Parliament Act 1911 is an Act of the Parliament of the United Kingdom. It is constitutionally important and partly governs the relationship between the House of Commons and the House of Lords which make up the Houses of Parliament. This Act must be construed as one with the Parliament Act 1949...
, as amended by section 1 of the Parliament Act 1949
Parliament Act 1949
The Parliament Act 1949 is an Act of the Parliament of the United Kingdom.This Act must be construed as one with the Parliament Act 1911...
, meaning that it was passed without the consent of the Lords after a proscribed delay. The use of the Parliament Act was contested by the claimants.
Lower courts
It was heard by the Divisional CourtDivisional Court
A Divisional Court, in relation to the High Court of Justice of England and Wales, means a court sitting with at least two judges. Matters heard by a Divisional Court include some criminal cases in the High Court as well as certain judicial review cases...
and decided on 28 January 2005. Lord Justice Maurice Kay and Mr Justice Collins presided. It was referred to the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
with a ruling on 16 February 2005; Lord Woolf CJ, Lord Phillips of Worth Matravers MR and May LJ presided.
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. 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".
Appellants
The appellant's argument was summarised by Lord Bingham:
- Legislation made under the 1911 Act is delegated or subordinate, not primary.
- 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.
- 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.
- 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.
- 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.
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.
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".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.
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.Justiciability
The case also raised the issue of whether the courts could challenge an Act of Parliament. The Enrolled Bill doctrineEnrolled Bill doctrine
The enrolled bill rule, is a principle of judicial interpretation of rules of procedure in legislative bodies. Under the doctrine, once a bill passes a legislative body and is signed into law, the courts assume that all rules of procedure in the enactment process were properly followed...
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" 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
Jocelyn Simon, Baron Simon of Glaisdale
Jocelyn Edward Salis Simon, Baron Simon of Glaisdale, QC, DL, PC known as Jack Simon, was as a Law Lord in the United Kingdom, having been, by turns, a barrister, a commissioned officer in the British Army, a barrister again, a Conservative Party politician, a government minister, and a judge.He...
in that case,[1974] AC 765, p. 798. and that this decision was "unquestioned". 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."
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." 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". All nine judges accepted that the court had jurisdiction of consider whether the 1949 was valid.
Status of legislation
It was submitted by the appellant that legislation passed using the 1911 Act is delegatedDelegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
. Lord Bingham was in agreement with the Divisional Court that this was not true, in contrast to the decision of the Court of Appeal. he argued that the phrasing "become an Act of Parliament on the Royal Assent being signified" denoted primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
. 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." 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." 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. Lord Hope stated that "it is primary legislation, albeit enacted in a way that is different", and Lord Brown also concurred with this viewpoint. The five Lords can be considered in agreement.
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. The argument that changes were "modest and straightforward" and excepted from a general rule was not advanced in the Lords. Lord Bingham proposed that even "changes of major constitutional significance" could be realised under the Act, excluding parliament length directly. 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".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. This was a confirmation that the Parliament Act procedure could not be used for any bill.
Outcome
The plaintiff's arguments were rejected by the House of LordsJudicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
and the Hunting Act was found to be valid.
Wider relevance
The case is of importance in the area of British constitutional lawConstitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
because of several judgements which consider the relationship between parliamentary supremacy and the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
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’.
Several other Law Lords suggested that the Act of Union also meant that Parliament was limited in its ability to legislate.