R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262

Key Points

  • Obiter comments indicated that parliamentary sovereignty was subject to limitations and an Act of Parliament can be disapplied by the courts if it conflicts with the rule of law

 Facts

  • The Parliament Act 1911 removed the power of the House of Lords (HL) to veto any Bill passed by the House of Commons. and limited the maximum time HL could delay a Bill was two years, unless it was a Money Bill or Bill to extend Parliament duration
  • The Parliament Act 1949 reduced the duration of delay from 2 years to 1 year.
  • The Parliament Act 1949 was passed using the procedure in the 1911 Act, this meant the 1911 Act was effectively being used to amend itself
  • The Hunting Act 2004 had been passed to make unlawful the use of dogs to hunt wild animals
  • The HL would not accept the Hunting Act 2004, and so it had been passed using the procedure under the Parliament Acts of 1911 and 1949
  • The appellants challenged the validity of the Hunting Act 2004 on the ground that the Parliament Act 1949 was invalid, and that because the Hunting Act 2004 had been passed using the procedure under that Act, it was also invalid
  • The argument was that any legislation passed under the procedure in the 1911 Act was effectively secondary legislation, and since the 1949 Act would thus be secondary legislation, it could not amend its parent legislation, the 1911 Act

Held (House of Lords)

  • Appeal dismissed; both the Parliament Act of 1949 and the Hunting Act 2004 were held to be valid.
  • The 1949 Act was primary legislation, as the wording of the 1911 Act unambiguously referred to the creation of “an Act of Parliament” (s. 1(1) of the Parliament Act 1911); the 1911 Act ought to be considered a parallel path to introduce Acts of Parliament

Lord Hope

  • “…the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”: [107]
  • “…the courts have a part to play in defining the limits of Parliament’s legislative sovereignty.”: [107]

Baroness Hale

  • “…the courts will […] decline to hold that Parliament had interfered with fundamental rights unless it has had made its intention crystal clear.”: [159]

Lord Steyn

  • “…in exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”: [102]

Commentary

  • The judgments in this case were the first express statements from judges in official capacity that courts might consider striking down legislation should they contradict constitutional principles
  • Based on the judgments it is clear that the judges now consider the principle of parliamentary sovereignty to be subject to limitations imposed by the competing constitutional principle of rule of law
  • Baroness Hale emphasised usage of the principle of legality in statutory interpretation and did not take as radical a stance as Lord Hope and Lord Steyn did in endorsing the outright disapplication of Acts of Parliament based