''R (Jackson) v Attorney General''
UKHL 56is a Judicial functions of the House of Lords">House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
case noted for containing ''
obiter
''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "said in passing",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, any remark in a legal opinion that is "said in passing" by a judge or arbitra ...
'' comments by the judiciary acting in their official capacity suggesting that there may be limits to
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...
, the orthodox position being that it is parliamentary sovereignty in the United Kingdom, unlimited in the United Kingdom.
The case, brought by Jackson and two other members of the
Countryside Alliance
The Countryside Alliance (CA) is a British organisation promoting issues relating to the countryside such as farming, rural services, small businesses and field sports, aiming to "Give Rural Britain a voice".
History
The Countryside Allian ...
, challenged the use of the
Parliament Acts to enact the
Hunting Act 2004
The Hunting Act 2004 (c. 37) is an Act of the Parliament of the United Kingdom which bans the hunting of most wild mammals (notably foxes, deer, hares and mink) with dogs in England and Wales, subject to some strictly limited exemptions; the ...
. The appellants claimed that this Act was invalid as it had been passed using a legislative procedure introduced by the
Parliament Act 1949
The Parliament Act 1949 (12, 13 & 14 Geo. 6. c. 103) is an Act of Parliament (United Kingdom), act of the Parliament of the United Kingdom. It reduced the power of the House of Lords to delay certain types of legislation – specifically p ...
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
The Parliament Act 1911 ( 1 & 2 Geo. 5. c. 13) 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, the two Houses of Parl ...
.
A
divisional court and
Court of Appeal
An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
both rejected this claim, although the Court of Appeal held that Parliament Acts procedure could not be used to effect "fundamental constitutional changes".
The case was appealed again to the House of Lords.
In relation to preliminary issues, the court held that it had
jurisdiction
Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
to examine the validity of the Hunting Act as a question of
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
(whether the 1911 Act could be used to enact the 1949 Act);
standing
Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
was not challenged.
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
Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred ...
. 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
Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher.
Early life and education
Steyn was born in Stelle ...
,
Lord Hope and
Baroness Hale suggested that there might be limits to parliamentary sovereignty (although
Lord Bingham
Thomas Henry Bingham, Baron Bingham of Cornhill (13 October 193311 September 2010) was a British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. On his death in 2010, he was described as the greatest ju ...
and
Lord Carswell
Robert Douglas Carswell, Baron Carswell, , (28 June 1934 – 4 May 2023) was a British barrister and judge who served as Lord Chief Justice of Northern Ireland and a Lord of Appeal in Ordinary.
Early life and education
The son of Alan Carswel ...
implicitly supported the orthodox view that there are no limits to parliamentary sovereignty).
''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
A central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or "what counts as law") wit ...
defining valid legal documents or by the Act redefining Parliament in a manner that binds the courts.
Christopher Forsyth argues that the Parliament Acts redefined Parliament to be a
bicameral
Bicameralism is a type of legislature that is divided into two separate Deliberative assembly, assemblies, chambers, or houses, known as a bicameral legislature. Bicameralism is distinguished from unicameralism, in which all members deliberate ...
body for all legislation which also has a method of
unicamerally legislating (except to extend Parliament beyond five years).
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.
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.
Facts
In the United Kingdom,
bills are normally presented to the monarch for
Royal Assent
Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in othe ...
after they have been passed by both the
House of Commons
The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...
and the
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
, at which point they become
primary legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...
as
Acts of Parliament. However, bills can also be passed using the
Parliament Acts. The
Parliament Act 1911
The Parliament Act 1911 ( 1 & 2 Geo. 5. c. 13) 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, the two Houses of Parl ...
allowed bills to be presented for Royal Assent without the assent of the House of Lords if they had been passed by the House of Commons in three successive
parliamentary sessions and there had been a delay of two years. The
Parliament Act 1949
The Parliament Act 1949 (12, 13 & 14 Geo. 6. c. 103) is an Act of Parliament (United Kingdom), act of the Parliament of the United Kingdom. It reduced the power of the House of Lords to delay certain types of legislation – specifically p ...
, passed using the Parliament Act procedure, amended the 1911 Act to reduce the power of delay to two successive sessions and a period of one year.
The legislation defines two exceptions in section 2(1) of the Parliament Act 1911: Money Bills can only be delayed for one month and "Bill
containing any provision to extend the maximum duration of Parliament beyond five years" are not eligible to use the procedure.

The
Hunting Bill was introduced as part of
Labour’s 2001 general election manifesto pledge to hold a free vote on banning
fox hunting
Fox hunting is an activity involving the tracking, chase and, if caught, the killing of a fox, normally a red fox, by trained foxhounds or other scent hounds. A group of unarmed followers, led by a "master of foxhounds" (or "master of hounds" ...
and would make it illegal to
hunt
Hunting is the Human activity, human practice of seeking, pursuing, capturing, and killing wildlife or feral animals. The most common reasons for humans to hunt are to obtain the animal's body for meat and useful animal products (fur/hide (sk ...
wild animals in England and Wales with
dogs
The dog (''Canis familiaris'' or ''Canis lupus familiaris'') is a domesticated descendant of the gray wolf. Also called the domestic dog, it was selectively bred from a population of wolves during the Late Pleistocene by hunter-gatherers ...
except in limited circumstances.
The bill was passed by the House of Commons on 3 December 2002 but rejected by the House of Lords. It was reintroduced to, and passed by, the House of Commons on 9 September 2004, but was significantly amended by the House of Lords. The House of Commons rejected the amendments on 18 November and the bill was granted Royal Assent later that day through the use of the Parliament Acts. The Hunting Act was due to come into force on 18 February 2005.
Judgment
Divisional court
John Jackson, Patrick Martin and Harriet Hughes, all members of the
Countryside Alliance
The Countryside Alliance (CA) is a British organisation promoting issues relating to the countryside such as farming, rural services, small businesses and field sports, aiming to "Give Rural Britain a voice".
History
The Countryside Allian ...
, sought
judicial review
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are in ...
of the use of the Parliament Acts to pass the Hunting Act.
They claimed that the 1949 Act had not been lawfully passed either because the 1911 Act could not be used to amend itself or because it provided a method of making delegated or
subordinate legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative dem ...
which could not alter the process of legislating. Consequently, they claimed, the 1949 Act had not reduced the delay specified in the 1911 Act and the Hunting Act, which was passed only in accordance with the requirements as amended by the 1949 Act, was invalid.
The case was heard in a
divisional court by
Lord Justice Kay and
Mr Justice Collins in January 2005. In their judgment, they found that the legislation made using the 1911 Act could modify the Act, as indicated by the reference to "''any'' Public Bill"
mphasis in originalbeing permitted to use the Parliament Acts (except for a limited number of express exceptions).
Furthermore, they ruled that the 1911 Act did not create a method of making delegated legislation, but was instead a redefinition of the relationship between the House of Commons and the House of Lords.
Moreover, there was found to be "no established principle applicable to this case which denies a power of amendment of the earlier statute in the absence of the express conferral of one specifically dealing with amendment".
The Parliament Act 1949 was therefore found to have been validly passed using the Parliament Act 1911 and the Hunting Act was consequently also held to be an Act of Parliament.
Court of Appeal
The case was appealed to the
Court of Appeal
An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
, where it was heard by the
Lord Chief Justice
The Lord or Lady Chief Justice of England and Wales is the head of the judiciary of England and Wales and the president of the courts of England and Wales.
Until 2005 the lord chief justice was the second-most senior judge of the English a ...
,
Lord Woolf
Harry Kenneth Woolf, Baron Woolf (born 2 May 1933) is a British life peer and retired barrister and judge. He was Master of the Rolls from 1996 until 2000 and Lord Chief Justice of England and Wales from 2000 until 2005. The Constitutional Ref ...
; the
Master of the Rolls
The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the President of the Court of Appeal (England and Wales)#Civil Division, Civil Division of the Court of Appeal of England and Wales ...
,
Lord Phillips; and
Lord Justice May in February 2005.
In addition to acknowledging the limitations stated in the Parliament Act 1911, the court found that "the greater the scale of the constitutional change proposed by any amendment, the more likely it is that it will fall outside the powers contained in the 1911 Act."
Fundamental constitutional changes could therefore not be passed using the Parliament Acts, including extending the duration of Parliament and abolishing the House of Lords.
However, the Parliament Act 1949, as a "relatively modest and straightforward amendment" to the 1911 Act that did not "extend to making changes of a fundamentally different nature to the relationship between the House of Lords and the Commons", was found to be within the scope of the Parliament Act 1911.
The 1949 Act and, consequently, the Hunting Act were therefore held to be valid legislation and the appeal was dismissed.
House of Lords

The case was appealed again to the
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
, where it was heard by
Lord Bingham
Thomas Henry Bingham, Baron Bingham of Cornhill (13 October 193311 September 2010) was a British judge who was successively Master of the Rolls, Lord Chief Justice and Senior Law Lord. On his death in 2010, he was described as the greatest ju ...
,
Lord Nicholls
Donald James Nicholls, Baron Nicholls of Birkenhead, (25 January 1933 – 25 September 2019) was a British barrister who became a Law Lord (Lord of Appeal in Ordinary).
Biography
Nicholls was educated at Birkenhead School, before readi ...
,
Lord Steyn
Johan van Zyl Steyn, Baron Steyn, PC (15 August 1932 – 28 November 2017) was a South African-British judge, until September 2005 a Law Lord. He sat in the House of Lords as a crossbencher.
Early life and education
Steyn was born in Stelle ...
,
Lord Hope,
Lord Rodger
Alan Ferguson Rodger, Baron Rodger of Earlsferry (18 September 1944 – 26 June 2011) was a Scottish academic, lawyer, and Justice of the Supreme Court of the United Kingdom.
He served as Lord Advocate, the senior Law Officer of Scotland, ...
,
Lord Walker,
Baroness Hale,
Lord Carswell
Robert Douglas Carswell, Baron Carswell, , (28 June 1934 – 4 May 2023) was a British barrister and judge who served as Lord Chief Justice of Northern Ireland and a Lord of Appeal in Ordinary.
Early life and education
The son of Alan Carswel ...
and
Lord Brown on 13 and 14 July 2005.
Nine judges were selected to hear the appeal, as opposed to the usual number of five, due to the significant constitutional issues the case raised.
Appellants' arguments
Sir
Sydney Kentridge, lead counsel for the appellants, summarised their arguments as follows:
If the Parliament Act 1949 were found not to be an Act of Parliament on any of the above grounds, all legislation passed using the Parliament Acts since the introduction of the 1949 Act, including the Hunting Act, would also not be valid Acts of Parliament, being passed only in accordance with the 1949 Act (rejection in two successive sessions and a delay of one year) as opposed to the more onerous requirements of the 1911 Act (rejection in three successive sessions and a delay of two years).
Standing
The House of Lords' judgment was given on 13 October 2005.
Parties bringing judicial review must have sufficient interest in the challenged subject. Professor Mullen therefore suggests that it is at first glance surprising that
standing
Standing, also referred to as orthostasis, is a position in which the body is held in an upright (orthostatic) position and supported only by the feet. Although seemingly static, the body rocks slightly back and forth from the ankle in the ...
was not contested: the appellants brought proceedings in their personal capacities, yet had not even been threatened with prosecution.
However, he suggests that no challenge was made because the legislation was likely to be challenged at some point and it was more convenient for the Government to have the legal issue decided before the Hunting Act came into force. Moreover, the recent expansion of standing for issues of public interest, such as the validity of an Act of Parliament, would have made a successful challenge more difficult.
Justiciability
Another preliminary issue, that of whether the House of Lords had
jurisdiction
Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...
to challenge the validity of an Act of Parliament, was also not argued by the
Attorney General
In most common law jurisdictions, the attorney general (: attorneys general) or attorney-general (AG or Atty.-Gen) is the main legal advisor to the government. In some jurisdictions, attorneys general also have executive responsibility for law enf ...
in a move described by Ekins as "an extraordinary concession".
The
enrolled bill rule, affirmed in ''
Pickin v British Railways Board'', had established that the courts could not examine the procedure by which legislation had been passed.
Furthermore, the
Bill of Rights 1689
The Bill of Rights 1689 (sometimes known as the Bill of Rights 1688) is an Act of Parliament (United Kingdom), act of the Parliament of England that set out certain basic civil rights and changed the succession to the Monarchy of England, Engl ...
prohibits review of parliamentary proceedings outside Parliament and section 3 of the Parliament Act 1911 specifically provides that "any certificate of the Speaker of the House of Commons
ertifying that a bill is eligible to use the Parliament Acts procedureshall not be questioned in any court of law".
Lord Bingham therefore wrote that he "
eltsome sense of strangeness at the exercise which the courts have... been invited to undertake in these proceedings".
However, the judges found that the court had jurisdiction because the case brought up a legal issue, that of
statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...
(whether the 1911 Act could be used to enact the 1949 Act),
rather than being examination of parliamentary proceedings.
Lord Bingham noted that the bill was not enacted by both
Houses of Parliament
The Palace of Westminster is the meeting place of the Parliament of the United Kingdom and is located in London, England. It is commonly called the Houses of Parliament after the House of Commons and the House of Lords, the two legislative ch ...
, as it was 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
distinguished ''Jackson'' from ''Pickin'' as a case examining the correct interpretation of the 1911 Act, an evaluation for the courts rather than Parliament;
Lord Hope concurred, noting that there was no absolute prohibition on courts evaluating the validity of Acts of Parliament;
and Lord Carswell agreed that the case raised "a question of law which falls within the scope of courts of law carrying out their regular function".
All nine judges accepted that the court had jurisdiction to consider whether the 1949 Act was valid.
Mullen suggests that the failure of the Attorney General to challenge either standing or justiciability in the case could have wider implications by lowering the barriers to litigation and also by providing a precedent that people acting in their personal capacities can challenge the validity of primary legislation.
Status of legislation passed using the Parliament Act 1911
The appellants' primary argument was that legislation passed using the Parliament Act 1911 is
delegated and therefore could not be used to amend the procedure of enactment. However, their Lordships disagreed with this claim on the basis of the clear language in the Act.
Lord Bingham found that the phrase "become an Act of Parliament on the Royal Assent being signified" denoted
primary legislation
Primary legislation and secondary legislation (the latter also called delegated legislation or subordinate legislation) are two forms of law, created respectively by the legislative and executive branches of governments in representative democ ...
. "The meaning of the expression 'Act of Parliament' is not doubtful, ambiguous or obscure ... It is used, and used only, to denote primary legislation ... The 1911 Act did, of course, effect an important constitutional change, but the change lay not in authorising a new form of sub-primary parliamentary legislation but in creating a new way of enacting primary legislation."
Lord Nicholls agreed that the 1911 Act provided "a second, parallel route" of making Acts of Parliament and that "it would be inconsistent with
he parliamentaryintention to interpret
he legislationas subject to an inherent, overarching limitation comparable to that applicable to delegated legislation."
Lord Steyn, Lord Hope and Lord Brown concurred in similar terms.
Limits of the Parliament Act 1911
The House of Lords rejected the Court of Appeal's finding that there was a distinction between non-fundamental constitutional changes, which could be passed using the Parliament Act 1911, and fundamental constitutional changes, which could not; Lord Bingham argued that "the ... solution finds no support in the language of the Act, in principle or in the historical record".
Of the nine judges, only Lord Carswell suggested that there may be implied limits to the use of the Parliament Acts, but acknowledged the difficulty of defining the extent of these restrictions.
However, seven of the judges endorsed the express limitation that a statute extending the life of Parliament beyond five years could not be passed using the Parliament Acts; a further five agreed with Lord Nicholls that the House of Commons could not "do indirectly by two stages what the House
ould notdo directly in one stage" by using the Parliament Acts to remove the express limitation and then enact legislation extending the life of Parliament,
a restriction that was considered necessary to ensure the effectiveness of the express limitation.
Lord Bingham was the only judge to explicitly reject the validity of this implied limitation, arguing that there were no reasons for preventing the alteration of the clause limiting the subject matter of full Acts of Parliament and that "it cannot have been contemplated that if, however improbably, the Houses found themselves in irreconcilable deadlock on this point, the government should have to resort to the creation of peers".
Outcome
The House of Lords found that the Parliament Act 1911 did not have any limitations that would prevent it being used to enact the Parliament Act 1949. The 1949 Act had therefore validly amended the requirements for a bill to use the Parliament Acts procedure and the Hunting Act, which was passed in accordance with these amended requirements, was consequently also held to be valid; the appellants' appeal was dismissed.
Significance
Cosmo Graham argues that ''Jackson'' could be seen as "a constitutional curio, dealing with an obscure point, which is now effectively settled in favour of the Executive"; the case, from this perspective, is of no practical consequences given the limited use of the Parliament Acts and plans to further reduce the power of the House of Lords to delay bills. However, he suggests that ''Jackson'' is part of a trend of increased willingness by the judiciary to examine the claimed existence of
executive
Executive ( exe., exec., execu.) may refer to:
Role or title
* Executive, a senior management role in an organization
** Chief executive officer (CEO), one of the highest-ranking corporate officers (executives) or administrators
** Executive dir ...
powers and "to push at the borders of traditional techniques of judicial interpretation".
Limits to parliamentary sovereignty
Common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
constitutionalism, a view that there are fundamental constitutional values that are protected even from interference by Parliament, had become increasingly popular at the time of ''Jackson''. Four recent cases had found that "in the absence of express language or necessary implication to the contrary, the courts
ill
ILL, or Ill, or ill may refer to:
Places
* Ill (France), a river in Alsace, France, tributary of the Rhine
* Ill (Vorarlberg), a river in Vorarlberg, Austria, tributary of the Rhine
* Ill (Saarland), a river of Saarland, Germany, tributary o ...
presume that even the most general words were intended to be subject to the basic rights of the individual".
There had also been extrajudicial comments by serving judges that parliamentary sovereignty may not be absolute:
Lord Woolf
Harry Kenneth Woolf, Baron Woolf (born 2 May 1933) is a British life peer and retired barrister and judge. He was Master of the Rolls from 1996 until 2000 and Lord Chief Justice of England and Wales from 2000 until 2005. The Constitutional Ref ...
had written that "if Parliament did the unthinkable, then I would say that courts would also be required to act in a manner which was without precedent" while
John Laws
Richard John Sinclair Laws CBE (born 8 August 1935) is a retired Australian radio announcer who had a broadcasting career that spanned 71 years. His distinctive voice earned him the nickname ''Golden Tonsils''.
Career
Best known as a talkback ...
had argued that "ultimate sovereignty rests ... not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the Parliament, is in this sense sovereign".
However, ''Jackson'' contained the first express support from judges acting in their official capacity for the proposition that courts might have the authority to strike down an Act of Parliament if it violated fundamental constitutional principles (albeit
obiter
''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "said in passing",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, any remark in a legal opinion that is "said in passing" by a judge or arbitra ...
).
This was a significant challenge to the orthodox view of
parliamentary sovereignty
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over al ...
, expressed by
Albert Venn Dicey
Albert Venn Dicey, (4 February 1835 – 7 April 1922) was a British Whig jurist and constitutional theorist. He is most widely known as the author of '' Introduction to the Study of the Law of the Constitution'' (1885). The principles it expou ...
, that Parliament can make and unmake law on any topic and that no body can make a higher form of law than Parliament or set aside primary legislation.
Lord Steyn,
If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. 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 a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.
However, Graham suggests that Lord Steyn's comments were limited to the use of the Parliament Acts and would not apply to legislation enacted using the ordinary legislative procedure. He also argues that it would be difficult to explain how courts would refuse to apply legislation unless human rights were involved, citing the example of the removal of
judicial review
Judicial review is a process under which a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are in ...
: using fundamental common law principles to interpret legislation is very different from striking down legislation supported by the elected House of Commons, and would be even more contentious if the legislation only substantially modified judicial review procedure.
Lord Hope followed on from Lord Steyn.
Parliamentary sovereignty is no longer, if it ever was, absolute ... It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament ... is being qualified ... The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.
Lord Hope also argued that Parliament should not be able to pass legislation that "is so absurd or so unacceptable that the populace at large refuses to recognise it as law".
Jeffrey Jowell suggests that these comments were influenced by Lord Hope's position as a Law Lord from Scotland,
where it is unclear whether Parliamentary sovereignty is recognised following ''
MacCormick v Lord Advocate'', in which the doctrine was seen as "a distinctively English principle which has no counterpart in Scottish constitutional law".
Baroness Hale similarly suggested that there may be limits to Parliament's legislative competence.
The courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear. The courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the rights of the individual from all judicial scrutiny.
Although no judge expressly disapproved the opinions that there were limits to Parliament's legislative capabilities, Mullen suggests that Lord Bingham and Lord Carswell intended to impliedly rebut these suggestions.
Lord Bingham affirmed that "the bedrock of the British constitution is ... the supremacy of the Crown in Parliament"
while Lord Carswell stated:
I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.
Justifying limits to the 1911 Act
Alison Young argues that ''Jackson''
entrenched section 2(1) of the Parliament Act 1911 by requiring that it only be overturned by adopting a specific manner and form (approval of the bill changing the 1911 Act by the House of Lords).
She suggests that Lord Steyn and Baroness Hale would explain this result using a self-embracing view of sovereignty – that Parliament as a whole is sovereign and can therefore bind later parliaments. The passing of the 1911 Act was from this perspective a redefinition of Parliament that binds the courts.
However, she notes that Lord Hope, Lord Nicholls and Lord Carswell provide an alternative explanation for the decision: that the 1911 Act modified the
rule of recognition
A central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity (or "what counts as law") wit ...
defining valid legal documents. Under this view, the 1911 Parliament did not bind future Parliaments simply by passing the Parliament Act 1911, but by the legislation being recognised, in political fact, as valid; the courts were therefore altering the legal rule of recognition accordingly. This perspective allows the orthodox continuing view of parliamentary sovereignty (that every new parliament is sovereign) to be held while still explaining why future parliaments cannot modify section 2(1) of the 1911 Act.
Christopher Forsyth suggests that the limitations of the 1911 Act could be explained by the common law constitutionalism theory, but argues that "if the judiciary frustrated by the failings of the elected legislature were to assert a power to hold Acts of Parliament invalid it would be stepping from law into politics and the outcome of its efforts impossible to predict".
He instead proposes that section 2(1) of the 1911 Act was a redefinition of Parliament: it is a
bicameral
Bicameralism is a type of legislature that is divided into two separate Deliberative assembly, assemblies, chambers, or houses, known as a bicameral legislature. Bicameralism is distinguished from unicameralism, in which all members deliberate ...
body for all legislation but also has a method of
unicamerally legislating (except to extend Parliament beyond five years) if the requirements of the Parliament Acts have been fulfilled.
However, he also notes that a "sufficiently determined elected House, coupled with an executive willing to influence the composition of the House of Lords by the creation of peers ... would in the end get its way. If the government advisors had a sufficiently secure Commons majority, it would in the end be able to extend the life of Parliament."
Jeffrey Jowell proposes two justifications for limiting parliamentary sovereignty: legitimacy and the current hypothesis of constitutionalism. The argument from legitimacy highlights that Parliament's supremacy depends on the democratic and accountable nature of legislature; anything that undermines this status would invalidate the applicability of the doctrine. Jowell suggests that this view was expressly supported by Lord Hope
and impliedly supported in other opinions that legislation limiting Parliament's accountability would be challenged by the judiciary.
The argument based on the current hypothesis of constitutionalism reasons that no authority should be allowed to violate fundamental rights in a democratic society: they are essential features that cannot be removed, even by a supposedly sovereign Parliament. This view was also expressly endorsed in ''Jackson'' by Lord Hope, who regarded Parliament's sovereignty as subject to the rule of law.
Parliamentary sovereignty as a judicial creation
Richard Ekins criticises as "historically false
ndjurisprudentially absurd" the claim made by Lord Steyn
and Lord Hope
that parliamentary sovereignty was solely a judicial creation. He argues that the doctrine is fundamental to the UK constitution because it has been accepted by all three
branches of government
The separation of powers principle functionally differentiates several types of state power (usually law-making, adjudication, and execution) and requires these operations of government to be conceptually and institutionally distinguishable ...
; "while the judges also accept the rule, they did not create it and may not (lawfully) change it".
However, Stuart Lakin responds that parliamentary sovereignty does, in practice and in theory, depend on its recognition by the courts.
Given that Parliament derives its powers from law, we have a ''normative reason'' to erase the concept of sovereignty from our constitutional landscape ... his perspectivedemands that Parliament may only exercise power in accordance with the principles – whatever they may be – that justify that power.
See also
*
United Kingdom constitutional law
The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...
*
United Kingdom administrative law
Notes
References
{{Reflist, 2
External links
Divisional court case reportReflections on Jackson v Attorney General: questioning sovereigntyConstitutional aspects of the challenge to the Hunting Act 2004
United Kingdom administrative case law
United Kingdom constitutional case law
Sovereignty
2005 in the environment
2005 in United Kingdom case law
House of Lords cases
Fox hunting